TGEU How to Win the Argument – Overcoming Myths in Legal Gender Recognition Discussions When discussing gender recognition procedures and how to reform them, certain stereotypes and fears might reoccur. In the following a number of frequent myths are addressed, with advice on how to respond to them. Security & Safety After robbing a bank, a bank robber will go internal process. Identification of crim- directly to the civil registry to change name inals today increasingly involves digital and gender marker. means, such as tax identifiers or digital The so called “bank-robber question” movements in the internet. is out of touch with reality. And even if such cases of abuse did happen, the A male convict will seek gender recognition argument is irrelevant, as the criminal only to be able to transfer to a women’s prison liability of a crime does not depend on Across countries, experience shows that a person’s gender marker. Fears that trans detainees are at the bottom of a criminals would abuse the procedure to prison hierarchy, making abusive intent mask their identity to avoid prosecution rather unlikely. Trans women face a high did not materialise in countries with ac- risk of discrimination and violence in de- cessible procedures. It turned out that tention, at the hands of other inmates or gender had no relevance to security-po- prison personal. Instead of such hypo- litical or regulatory policies and was a thetical experiences, we should be con- legally insignificant piece of information cerned that women in detention are safe in everyday life and legal traffic. Abuse and secure, whether trans or not. of laws is universal but cannot suffice as reason to deny a population group their human rights. Experience shows that those seeking gender recognition take such a decision after long years of Legal Gender Recognition in Europe: toolkit Sex offenders will have an easier time velopment of human rights and respect accessing women’s bathrooms for diversity and equality. Also, the world Evidence shows that transgender per- did not end in countries with accessible sons face violence when forced to use LGR procedures and the majority of peo- bathrooms that do not correspond to ple still identify as men or women. their gender identity. This may cause feelings of intimidation and fear of be- A free choice of gender markers for everyone ing unsafe. Furthermore, thinking that is the end to equality measures for women transgender persons are criminals per se Classic measures to support women/ is transphobic. The dignity and safety of work-life balance are not affected by lift- every person, including transgender per- ing restrictive gender recognition proce- sons, should be our priority. dures. Civil status law and affirmative actions e.g. for single mothers, women Experience from countries with proce- in low-income sectors etc., can continue dures based on self-determination show to exist in a similar way to non-discrim- that these kinds of abuse are exaggerat- ination measures for people with a mi- ed, unrealistic and fantastic. Such abuse grant background or People of Colour, scenarios are often fed by a psychologi- without the mandatory registration of cal fear that an outdated societal system gender in public registries. would be shaken by a group of “odd- balls”. In particular, men are afraid that We need clear allocations of gender patriarchal structures and male privilege for statistical reasons become obvious and thus vulnerable. The mandatory registration of a per- son’s gender is not necessary for statisti- cal reasons. Furthermore, other criteria Society for positive measures (such as disability, ethnic background, religion, poverty) “Women” and “men” will disappear can be sociologically registered based and social functioning will suffer on self-declaration. Gender is the ex- Challenging the notions of “man” and ception amongst other discrimination “woman” is not inherently negative and is grounds, which are all based on the an unavoidable part of societal progress. self-declaration of the individual. Challenging these notions is not associat- ed with the abolishment of invasive med- ical requirements, but rather with the de- TGEU There are too few trans people and having and again that the effort for such a small special regulations for them is excessive group would not be worth it. This argument does not hold as mem- bers of a minority still have the right to Society is not ready for progressive have their rights protected. National gender recognition laws and European case law has repeatedly After the introduction of the LGR pro- confirmed that gender identity is one of cedures, understanding and support of the most intimate areas of a person’s pri- gender identity equality in the Maltese vate live and thus protected by the right population soared to 85 per cent, the to protection of privacy and family life. second highest overall in the EU; and at 17 per cent, the fastest growth in any Such legislation would let numbers of EU member state in the period of two trans people skyrocket years since the last survey. 100 For Mal- After the introduction of a self-deter- tese campaigners and policy makers mined gender marker entry the num- these changes in attitudes clearly corre- bers in Malta increased - other coun- late with the new law. This is a very likely tries report something similar - from 21 hypothesis as the Fundamental Rights cases in 15 years to 60 cases in the first Agency shows that LGBTI-friendly pub- year of the law. This might appear as a lic measures lead to an improved living high percentage; however, overall it ac- situation for LGBT people. 111 cords with the average proportion of trans people in a given population. An Additionally, less bureaucracy in this increase – after removal of bureaucratic area hurts no-one and it actually makes barriers – is short term and levels off at a difference for one group in the popula- an average level. In the overall view, the tion in otherwise difficult circumstanc- numbers are still small. es. It is a state signal for the acceptance of human rights. Costs for bureaucracy Often in discussions, opponents, who also decrease as more complex proce- do not want to see the human rights as- dures, e.g. expert statements are often pect, project very strong unreal fears, very expensive. but dismiss the affected groups as “life- style nutcases”. This argument is not Young men will abuse gender recognition consistent if the figures would rise rap- procedures to avoid army conscription idly if restrictions were removed, when The fear that young men will use acces- on the other hand, it is emphasised time sible gender recognition procedures to Legal Gender Recognition in Europe: toolkit evade military draft are not substanti- Reproduction ated by evidence. Young men seeking to be exempted from military service Removing the sterilisation requirement will, rather, continue to use conscien- will lead to pregnant men and women tious reasons or medical statements, as begetting children. a change in legal gender prompts many In the past, some societies impaired the social changes as well as requiring con- reproduction of certain groups (e. g. siderable effort to adapt all ID docu- Roma, people with disabilities, people ments etcetera. In case of fraudulent use with mental disorders …) which we, as a it would certainly be possible to revoke society, condemn. Reproductive rights the decision of an administrative gender do not depend on a person’s gender iden- recognition procedure through general tity; they are individual human rights and administrative rules. should be protected as such. Trans men have been giving birth for a long time, al- beit without legal protection and recog- Marriage nition of their identity, which contributes to a realistic risk of transphobic discrimi- Allowing a trans person to stay married nation which might also affect the child. leads to same-sex marriages When concluding the marriage, the Sterilisation is not forced if the person agrees spouses were of legally of different gen- to gender reassignment surgery and that is der and thus fulfilled the conditions for inevitably the outcome of it marriage. It is an obligation of the state It is irrelevant whether or not an individ- to protect the rights of a lawfully mar- ual finds it acceptable to give up repro- ried couple, irrespective of whether or ductive rights in exchange for the right not a spouse seeks to have their gen- to identity recognition. The UN Decla- der marker rectified at a later point in ration on Bioethics and Human Rights112 time. Protection of an existing marriage states that medical interventions are is however not the same as enabling only to be carried out with the prior, free the marriage of a same gender couple. and informed consent of the person con- Moreover, this question loses signifi- cerned, based on adequate information. cance in view of an international trend If withdrawing consent could lead to dis- in jurisprudence and development of advantages, e.g. inaccessibility of legal law towards giving equal recognition to gender recognition, consent is not given same-gender partnerships. freely and is thus void. TGEU Mental Health Diagnosis tries, cost coverage depends on political will, thus requiring a political discussion We need a diagnosis to prevent those who on the matter. are really mentally ill from accessing LGR If we are concerned about people’s men- Only a doctor / expert can tell if a person tal health, we should invest more into is really transgender education on and support for questions There is no objective procedure available related to gender identity. Trans people to assess a person’s gender identity. Evi- often show worse mental health as a dence shows that requiring a transsexual, reaction to a transphobic environment.